United States Court of Appeals

For the First Circuit

No. 01-1671

UNITED STATES OF AMERICA,

Appellee,

v.

OSCAR ALONSO LONDONO-QUINTERO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

 Lipez, Circuit Judge,

Coffin, Senior Circuit Judge,

and Barbadoro,* District Judge.

Timothy J. Morgan for appellant.

Donald C. Lockhart, Assistant United States Attorney, with

whom Margaret E. Curran, United States Attorney, and Gerard B.

Sullivan, Assistant United States Attorney, were on brief for

appellee.

May 6, 2002

 

* Of the District of New Hampshire, sitting by designation.
-2-

LIPEZ, Circuit Judge. Defendant-appellant Oscar Alonso

Londono-Quintero, a native of Colombia, was lawfully admitted into

the United States in 1984. He resided in Rhode Island from 1984 to

1991 and then in Florida until he was deported in 1998. In 1999,

he illegally returned to the United States. On February 6, 2001,

he pled guilty to a federal indictment charging him with illegal

reentry into the United States after having been deported, in

violation of 8 U.S.C. § 1326. At sentencing, the district court

determined that Londono-Quintero's prior conviction under Florida

law for lewd and lascivious assault on a child constituted an

"aggravated felony," thus warranting a substantial increase in

sentence under the federal sentencing guidelines. Accordingly, the

district court sentenced Londono-Quintero to 37 months'

imprisonment followed by three years of supervised release.

Challenging the court's characterization of the Florida conviction

as an aggravated felony, Londono-Quintero appealed. We affirm.

I.

On September 7, 1994, Londono-Quintero pled guilty in

Florida state court to a two-count information charging that, on or

about March 9, 1994, he committed the crime of lewd and lascivious

assault on a child, in violation of Fla. Stat. Ann. § 800.04

(1994). Although the crime carried a maximum penalty of 15 years

in prison, see Fla. Stat. Ann. § 775.082(3)(c) (1994), LondonoQuintero's actual sentence was five years of probation. LondonoQuintero was subsequently deported in 1998. In October 1999, he

illegally reentered the United States through Mexico. He was
-3-

arrested on November 10, 2000, by the Immigration and

Naturalization Service. 

On December 20, 2000, a grand jury in the District of

Rhode Island returned a one-count indictment charging that LondonoQuintero was an alien who, after having previously been arrested

and deported from the United States, knowingly entered and was

found in Rhode Island without the express consent of the Attorney

General to reapply for admission into the United States, in

violation of 8 U.S.C. § 1326. Pursuant to a written plea

agreement, Londono-Quintero pled guilty to the charge on February

6, 2001.

At sentencing, the court found that Londono-Quintero's

base offense level was 8 under U.S.S.G. § 2L1.2(a). The court

determined, over Londono-Quintero's objection, that his prior

conviction under Florida law for lewd and lascivious assault on a

child constituted an aggravated felony, thus warranting a 16-level

sentencing enhancement under the relevant sentencing guideline in

effect at the time. See § 2L1.2(b)(1)(A) (2000). In doing so, the

court stated:

Defendant has objected to the presentence report claiming

those 16 points shouldn't have been added, and that's

where the dispute is in this case, was his conviction in

Florida in 1994 for an aggravated felony. It's an

aggravated felony if he was guilty of a crime the

equivalent of sexual abuse of a minor. In Florida, he

was charged with lewd and lascivious assault on a child.

Assault - that's a key word. He pleaded guilty,

according to his own admission, and he received five

years of probation with certain conditions. The statute

under which he was convicted is broad, and it can involve

conduct upon a minor, or in the presence of a minor. In

order to determine what conduct was involved here the

Court must look to the information, the charge. The
1 At the time of sentencing, Application Note 5 provided: 

Aggravated felonies that trigger the adjustment from

subsection (b)(1)(A) vary widely. If subsection

(b)(1)(A) applies, and (A) the defendant has

previously been convicted of only one felony

offense; (B) such offense was not a crime of

violence or firearms offense; and (C) the term of

imprisonment imposed for such offense did not exceed

one year, a downward departure may be warranted

based upon the seriousness of the aggravated felony.

U.S.S.G. § 2L1.2, cmt. n.5 (2000).

2 The deportation condition is as follows: 

[U]pon completion of the term of imprisonment, the

defendant is to be surrendered to a duly-authorized

immigration official for deportation in accordance with

the established procedures provided by the Immigration

and Naturalization Act, 8 U.S.C. §§ 1101, et seq. As a

-4-

charge is assault on a child. That's what he pleaded

guilty to, and it was a lewd and lascivious assault. In

other words, it involved sexual conduct. So, in effect,

what he was convicted of, what he pleaded guilty to, was

a sexual assault on a minor. That is an aggravated

felony under federal law. It's not necessary for the

Court to get in the specific facts of the particular

conduct. His plea to that particular charge is

sufficient to determine that it was an aggravated felony.

Londono-Quintero also received a three-level reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1. He requested

a downward departure on grounds that he satisfied the requisite

elements of U.S.S.G. § 2L1.2, Application Note 5 (2000).1 That

departure request, however, was denied. 

Accordingly, the applicable Criminal History Category was

I, and the total offense level was 21, yielding a sentencing range

under U.S.S.G. § 5A of 37 to 46 months' imprisonment. The court

sentenced defendant to 37 months of imprisonment to be followed by

three years of supervised release with the deportation condition.2
further condition of supervised release, if ordered

deported, defendant shall remain outside the United

States during that time.

United States v. Ramirez, 948 F.2d 66, 68 (1st Cir. 1991); accord

United States v. Sanchez, 923 F.2d 236, 238 (1st Cir. 1991).

-5-

II.

Londono-Quintero argues on appeal that the district court

erred when it concluded that his 1994 conviction constituted an

"aggravated felony" under the federal sentencing guidelines. He

also claims that the sentencing court erred in its refusal to grant

his motion for a downward departure.

A. The "Aggravated Felony" Determination

At the time of Londono-Quintero's sentencing, the

Sentencing Guidelines imposed a 16-level enhancement in illegal

reentry cases on offenders with a prior conviction for an

"aggravated felony." U.S.S.G. § 2L1.2(b)(1)(A)(2000). The

question of what constitutes an "aggravated felony" for § 2L1.2

purposes is controlled by 8 U.S.C. § 1101(a)(43). See U.S.S.G.

§ 2L1.2, cmt. n.1. ("For purposes of [§ 2L1.2] . . . '[a]ggravated

felony' is defined at 8 U.S.C. § 1101(a)(43) without regard to the

date of conviction of the aggravated felony."). Our review of such

determinations is de novo. See United States v. Martinez-Garcia,

268 F.3d 460, 464 (7th Cir. 2001) (reviewing de novo what qualifies

as "aggravated felony" under § 2L1.2).

Section 1101(a)(43) provides in relevant part that the

term "aggravated felony" means, inter alia, "murder, rape, or

sexual abuse of a minor." 8 U.S.C. § 1101(a)(43)(A). The district
3 We note that courts have typically applied the Taylor

categorical approach to determine what constitutes a "violent

felony" for sentencing purposes under the career offender statute.

We see no reason, however, why the Taylor approach should not apply

with equal force to "aggravated felony" determinations under

§ 2L1.2(b)(1)(A). Cf. Martinez-Garcia, 268 F.3d at 464-466 (7th

Cir. 2001) (employing Taylor-esque categorical approach in

determining whether offense to which defendant pled guilty

constituted "aggravated felony" under § 2L1.2). Nor do the parties

object to the application of Taylor in this case.

-6-

court concluded that Londono-Quintero's prior conviction qualified

as "sexual abuse of a minor" and therefore constituted an

"aggravated felony" under § 2L1.2(b)(1)(A). On appeal, LondonoQuintero asserts that the district court reached that conclusion by

improperly considering facts underlying his prior conviction,

contrary to the "categorical approach" set forth by the Supreme

Court in Taylor v. United States, 495 U.S. 575, 602 (1990). We

explore that contention.

1. The Taylor Categorical Approach3

Under the Taylor approach, a sentencing court should

"look only to the fact of conviction and the statutory definition

of the prior offense" to determine whether a prior conviction

qualifies as a predicate offense for sentencing enhancement

purposes. Id. at 602; see also United States v. Harris, 964 F.2d

1234, 1235 (1st Cir. 1992). Where the statutory definition

encompasses both predicate and non-predicate offenses, however, it

may be necessary to go beyond the statute and the fact of

conviction. See Harris, 964 F.2d at 1235; see also United States

v. Sacko, 178 F.3d 1, 3 (1st Cir. 1999). In those situations, a

sentencing court may look to "the indictment or information and
4 The statute appears to have been amended twice since

defendant's 1994 offense -- once in 1999, and again in 2000. Fla.

Stat. Ann. § 800.04 (2001) (Historical and Statutory Notes). Since

Defendant's charged conduct and guilty plea occurred in 1994, we

concern ourselves only with the version of the statute in effect at

that time.

-7-

jury instructions in order to discern which type of crime the

offender was convicted of perpetrating." Sacko, 178 F.3d at 3

(citing Taylor, 495 U.S. at 602). If the charging papers simply

contain the boilerplate statutory formulation and there are no jury

instructions because of a guilty plea, it is appropriate for the

sentencing court to

look to the conduct in respect to which the

defendant was charged and pled guilty, not

because the court may properly be

interested . . . in the . . . nature of that

particular conduct, but because that conduct

may indicate that the defendant and the

government both believed that the [predicate]

crime . . . rather than the [non-predicate]

crime . . . was at issue.

Harris, 964 F.2d at 1236. The inquiry should focus on "the meaning

of the defendant's guilty plea" -- that is, whether the defendant's

plea constitutes an admission to the predicate offense under a

statute that encompasses both predicate and non-predicate offenses.

United States v. Shepard, 231 F.3d 56, 66 (1st Cir. 2000).

2. Analysis

We begin our analysis with the language of the statute to

which Londono-Quintero pled guilty, Fla. Stat. Ann. § 800.04

(1994):4

A person who:
-8-

(1) Handles, fondles, or assaults any child

under the age of 16 years in a lewd,

lascivious, or indecent manner;

(2) Commits actual or simulated sexual

intercourse, deviate sexual intercourse,

sexual bestiality, masturbation,

sadomasochistic abuse, actual lewd exhibition

of the genitals, or any act or conduct which

simulates that sexual battery is being or will

be committed upon any child under the age of

16 years or forces or entices the child to

commit any such act;

(3) Commits an act defined as sexual battery

under s. 794.011(1)(h) upon any child under

the age of 16 years; or

(4) Knowingly commits any lewd or lascivious

act in the presence of any child under the age

of 16 years, without committing the crime of

sexual battery, commits a felony of the second

degree, punishable as provided in s. 775.082,

s. 775.083, or s. 775.084.

Section 800.04 thus criminalizes, inter alia, sexual offenses that

do not rise to the level of rape or sexual battery and which are

committed against children under the age of sixteen. It encompasses

acts involving physical contact between the perpetrator and child

victim, as well as acts that do not involve any such physical

contact.

Londono-Quintero argues that the charged offense under

Florida law does not constitute "sexual abuse of a minor" within

the meaning of 8 U.S.C. § 1101(a)(43)(A). Albeit difficult to

decipher, his argument seems to rest on the following logic: (a)

given a sentence that involved no incarceration, he must have been

charged only as a "flasher" under § 800.04's clause (4), which

explicitly provides that the crime may be committed "in the

presence" of the child without committing the crime of "sexual
5 Section 827.071(e) defines sexual battery as:

Oral, anal or vaginal penetration by, or union with, the

sexual organ of another or the anal or vaginal

penetration of another by any other object; however,

"sexual battery" does not include an act done for a bona

fide medical purpose.

6 To be sure, Londono-Quintero refers us in his brief to

8 U.S.C. § 2243. Since that section does not exist in the Code, we

assume that his intention was to refer us to 18 U.S.C. § 2243,

which provides in relevant part: 

§ 2243. Sexual abuse of a minor or ward

(a) Of a minor.--Whoever, in the special maritime and

territorial jurisdiction of the United States or in a

Federal prison, knowingly engages in a sexual act with

another person who--

(1) has attained the age of 12 years but has not attained

the age of 16 years; and

(2) is at least four years younger than the person so

engaging; 

or attempts to do so, shall be fined under this title,

imprisoned not more than 15 years, or both.

7 A "sexual act" that constitutes "sexual abuse of a minor"

under § 2243 is defined in 18 U.S.C. § 2246(2) as:

-9-

battery;" (b) "sexual battery" under Florida St. Ann. § 827.0715 --

a crime with which he was not charged -- is virtually synonymous

with the "sexual act[s]" prohibited under 18 U.S.C. § 2243 (1994),6

which criminalizes "sexual abuse of a minor or ward" within the

special maritime and territorial jurisdiction of the United States;

(c) because both 18 U.S.C. § 2243 and 8 U.S.C. § 1101(a)(43)(A) use

the phrase "sexual abuse of a minor," that phrase must mean the

same thing under both statutes; (d) Congress specifically defined

"sexual abuse of a minor" for purposes of § 2243, and the

definition does not include the flasher-type crime underlying his

Florida § 800.04 conviction;7 and (e) therefore, the crime with
(A) contact between the penis and the vulva or the penis

and the anus, and for purposes of this subparagraph

contact involving the penis occurs upon penetration,

however, slight;

(B) contact between the mouth and the penis, the mouth

and the vulva, or the mouth and the anus; or

(C) the penetration, however slight, of the anal or

genital opening of another by a hand or finger or by any

object, with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify the sexual desire of any

person.

18 U.S.C. § 2246(2).

-10-

which he was charged under Florida law does not constitute "sexual

abuse of a minor" within the meaning of § 1101(a)(43)(A).

We reject this logic for two reasons. First, as we shall

explain further, the allegations of the information precluded any

argument that Londono-Quintero was only charged under § 800.04's

clause (4) as a flasher who never assaulted the child victim.

Second, many of the offense descriptions in § 1101(a)(43) include

cross-references to other Code sections. However, there is no

cross-reference in subsection (A) to another federal statute for

the definition of "sexual abuse of a minor." In the absence of an

explicit statutory cross-reference in § 1101(a)(43)(A), we find

Londono-Quintero's reliance on § 2243 to be misplaced. Thus, we

reject his efforts to import a restrictive definition of "sexual

abuse of a minor" into § 1101(a)(43)(A), which designates that

offense as an "aggravated felony."

In the absence of a statutory definition of "sexual abuse

of a minor," we rely instead on the plain meaning of that phrase.

See Smith v. United States, 508 U.S. 223, 228 (1993) ("When a word

is not defined by statute, we normally construe it in accord with
-11-

its ordinary or natural meaning."). According to Random House

Webster's, "sexual" is defined as, inter alia, "of, pertaining to,

or for sex." Random House Webster's Unabridged Dictionary 1755 (2d

ed. 1987). The definitions of "abuse" include, inter alia, "to use

wrongly or improperly," or "misuse." Id. at 9. The phrase "sexual

abuse" is defined separately as "rape, sexual assault, or sexual

molestation." Id. at 1755. 

Without settling on any particular definition, we

nevertheless read the plain meaning of "sexual abuse of a minor" in

§ 1101(a)(43)(A) to encompass easily the physical-contact

provisions of § 800.04 of the Florida statute. The government

argues, however, for a broad federal definition. It asserts that

any violation of § 800.04 -- regardless of whether physical contact

with the victim is involved -- falls within the plain meaning of

"sexual abuse of a minor" (and therefore constitutes an "aggravated

felony" predicate offense). Under this theory, a § 800.04

violation would by definition always constitute a § 1101(a)(43)(A)

predicate offense of "sexual abuse of a minor." Thus, the argument

goes, we need not look beyond the statute of conviction in order to

conclude that the defendant pled guilty to an "aggravated felony"

under U.S.S.G. § 2L1.2. In pressing this statutory argument, the

government urges us to adopt the reasoning of our sister circuit in

a similar case, United States v. Padilla-Reyes, 247 F.3d 1158 (11th

Cir. 2001), where the court held that any conviction under § 800.04

(albeit the 1987 version of that statute) qualifies as "sexual

abuse of a minor" for purposes of § 1101(a)(43)(A), even though
8 The court held specifically that crimes of "sexual abuse of

a minor" for purposes of § 1101(a)(43)(A) do not require proof of

physical contact between the perpetrator and the victim. See

Padilla-Reyes, 247 F.3d at 1163; see also United States v. ZavalaSustaita, 214 F.3d 601, 604-08 (5th Cir. 2000) (affirming 16-level

enhancement where Texas indecent exposure offense which required no

proof of physical contact qualified as "sexual abuse of minor");

United States v. Baron-Medina, 187 F.3d 1144, 1147 (9th Cir. 1999)

(holding that a certain California sex offense qualified as "sexual

abuse of a minor" justifying 16-level enhancement under

§ 2L1.2(b)(1)(A) where state courts interpreted statute to be

"violated by a person who does not himself touch the victim child,

if the person, with the requisite intent, coerces the child to

touch himself").

-12-

§ 800.04 "encompasses acts involving victim contact as well as acts

involving no victim contact." Id. at 1162-64.8

Although the government's statutory argument may well

have merit, we need not go as far as the government urges on the

facts of this case. That is because, even if § 800.04 encompasses

both predicate and nonpredicate offenses, the charging document to

which the defendant pled guilty in this case unambiguously

indicates that he was convicted of a crime that fits squarely

within the physical contact provisions of § 800.04 and thus

constitutes "sexual abuse of a minor" under § 1101(a)(43)(A) within

the plain meaning of that phrase. See Taylor, 495 U.S. at 602

(permitting examination of "indictment or information or jury

instructions" in cases where the statutory definition encompasses

both predicate and nonpredicate offenses); Sacko, 178 F.3d at 3

(allowing sentencing court to look to charging document "to discern

which type of crime" underlies conviction). Thus, we affirm the

sentencing court's "aggravated felony" determination on the basis

of the factual allegations contained in the charging document.
-13-

The information describes in a caption the two counts as

"LEWD ASSAULT ACT" and describes the victim -- referred to as

"A.G." -- as "a child under the age of sixteen." Count One charges

Londono-Quintero with violating § 800.04 by inter alia "fondling

A.G.'s BREASTS and/or touching and/or rubbing A.G.['s] genital

area." Count Two charges Londono-Quintero with violating

alternative elements of § 800.04 by "placing A.G.'s HAND on his

PENIS masturbating and/or ejaculating." Given these factual

details of the alleged crimes, which go well beyond a mere

recitation of the various elements of the statute, the charging

document unmistakably establishes that Londono-Quintero pled guilty

to a § 800.04 violation that constitutes "sexual abuse of a minor."

Londono-Quintero argues that the district court, in

making its "aggravated felony" determination, erroneously

considered the police report, which described in detail the conduct

underlying his § 800.04 conviction. This argument is wrong for two

reasons. First, as we made clear in Shepard, there is no general

prohibition against the use of police reports by the sentencing

court to determine the crime to which a defendant pled guilty. See

Shepard, 231 F.3d at 67 ("[W]e see no justification for an absolute

bar to the consideration of [police reports] when the sentencing

court must determine whether the defendant and the government both

believed that the defendant was entering a guilty plea to a

generically violent crime."). Second, in this case, the court

disavowed any reliance on the police report, stating that "[i]t's

not necessary for the Court to get in[to] the specific facts of the
-14-

particular conduct." In the court's view, the information provided

all the detail necessary for the "aggravated felony" determination

and the resulting 16-level enhancement. We agree.

B. Downward Departure

Londono-Quintero argues that the district court erred in

denying his oral motion for a downward departure made for the first

time at the sentencing hearing. We lack jurisdiction, however, to

reach the merits of this claim.

The Sentencing Reform Act specifically defines when a

defendant can seek appellate review of a sentence. See 18 U.S.C.

§ 3742(a). "[N]o appeal lies from a discretionary refusal to

depart." United States v. Morrison, 46 F.3d 127, 130 (1st Cir.

1995); see also United States v. Pierro, 32 F.3d 611, 619 (1st Cir.

1994) (citing cases). We do have appellate jurisdiction, however,

"where the decision not to depart is based on the sentencing

court's assessment of its lack of authority or power to depart."

Morrison, 46 F.3d at 130. Here, the record is not entirely clear

as to whether the court properly apprehended its departure

authority. However, the district court stated that, even if it did

have the power to depart, it would not exercise that power because

of defendant's conduct in this case. "Because the trial judge

indicated his refusal to depart even if he had the authority," we

are without jurisdiction to review his denial of Londono-Quintero's

departure request. United States v. DeLeon, 187 F.3d 60, 69 (1st

Cir. 1999).

Affirmed.